Questioned on the legality of the new requirement for foreign spouses to prove basic command of the English language when applying to enter the UK to join a spouse, the High Court dismissed the challenge.
The pre-entry testing scheme introduced by paragraph 281, ruled the High Court in Birmingham last Friday, stays.
Mr. Justice Beatson ruled that the changes did not interfere with the family rights of the claimants and that the aims to promote integration and to protect public services were "legitimate".
Moreover, he rejected the claim that the new rule indirectly discriminates on the grounds of nationality, ethnic origins or disability.
The amendments of Paragraph 281 of the Immigration Rules, which were laid before Parliament on 1 October 2010 and came into effect on 29 November 2010, require the foreign spouses and partners of British citizens or persons settled in the UK (or being admitted for settlement) applying for a spouse visa, that is for leave to enter the UK with a view to settlement, to produce a test certificate of knowledge of the English language to the standard A1 level of the Common European Framework (with exceptions available).
Hitherto, Immigration Rules only required immigrant spouses and partners to demonstrate this knowledge when they applied for settlement after the 2 years in the UK (Probation Period).
The Rule change introduced an additional test prior to entry to the UK.
Three couples had challenged the rules introduced in November 2010, with the interventions of Liberty and JCWI as interested parties.
The claimants appealed to the High Court on the grounds that:
- the new rule is a disproportionate and unlawful interference with the claimants' and their spouses’ human rights.
- the new rule interferes with their rights under Articles 8 and 12 of the European Convention on Human Rights to marry and live together in this country.
- the provision is discriminatory on grounds particularly of race and nationality, but also ethnic origins, language, gender and disability, and is thus contrary to Article 14 of the European Convention on Human Rights read with Articles 8 and 12.
"The rule is designed, putting it crudely, to keep out persons who tend to marry within their communities, who tend to have arranged marriages, who tend to be from the Indian subcontinent and the Middle East in particular," Manjit Gill QC, told the High Court for the Chaptis earlier this year.
Vali Chapti's application to join his wife, Rashida, a British citizen, was rejected, amongst other reasons, because he was judged unable to fulfil the English language requirement because of the difficulties of learning English in his village in rural Gujurat.
In the case of Mrs Saffana Abdulla Mohammed Ali, there was no UKBA approved test centre in Yemen, the applicant was also illiterate, and would need lessons in computer literacy in order to take the test.
In the case of Mrs Saiqa Bibi’s husband in Pakistan, he spoke no English and had no computer skills, and would therefore have to relocate to another part of Pakistan for 6 months in order to take lessons as he would otherwise need to undertake a daily 4 hour journey to get to and from classes.
As detailed by JCWI (for more details click here http://jcwi.wordpress.com/), in dismissing all three applications for judicial review Mr Justice Beaston held that:
- There is no interference with Article 12 ECHR (right to marry and found a family) read together with Article 8 ECHR (respect for private and family life) or/and common law, as Article 12 did not confer a right to marry in the UK where one party to the proposed marriage is abroad and has no right to enter and the Rule did not prevent marriage from taking place in the UK where both parties are in the jurisdiction, nor did it prevent anyone from travelling abroad to get married
- The Rule is not a disproportionate interference with family life, and is both justified and rationally connected to the legitimate aims of promoting integration and protecting public services.
- There was no indirect discrimination on grounds of nationality, ethnic origin or disability under Article 14 ECHR/Article 8 ECHR. Evidence of the disparate impacts of the pre-entry tests were based on poverty, lack of educational opportunities and rurality etc and not on nationality.
- The application to pursue EU arguments-i.e. discrimination against British nationals and their spouses as compared to EU nationals and spouses was rejected, though it could be considered in the light of this judgment and developments in Bhavyesh (CO/4526/2011)
The government pitched its argument to the High Court that the imposition of a pre-entry English language test for migrants was reasonable towards the goal of integration. Yet the evidence submitted by lawyers for the applicant showed that the vast majority of family members applying for permanent settlement after two years residence in the UK are able to pass the English language test showing that they have met the standard level of conversation.
"No-one in their right mind would pretend that learning English is not a good thing for immigrants in the UK to do," Hina Majid, legal policy director of the Joint Council for the Welfare of Immigrants told the BBC, commenting the ruling (English tests for immigrant spouses fair, court rules).
"This ruling, however, will mean that many British citizens will continue to experience enforced and indefinite separation from loved ones, partners and, in some cases, their children.
"It is already a legal requirement that partners and spouses must demonstrate linguistic skills shortly after arrival in the UK.
"In countries experiencing conflict, poverty, natural disasters, and political instability, it can however be extremely difficult to acquire linguistic skills prior to arrival in the UK."
- HIGH COURT OF JUSTICE: Approved Judgement: R (Chapti and ors) v SSHD (Liberty and JCWI intervening)
- JCWI: Chaprti & Orsi v SSHD – pre-entry language test judgement
- UK Immigrant Magazine: The Chapti case: Greater difficulties for migrant family reunification will mean worse integration outcomes, not better